Appointing Australia’s highest judges deserves proper scrutiny

Should Australia’s High Court judges be representative of the community that their rulings affect? Should politics play a part? AAP/Lukas Coch

Late last week, the federal government appointed Geoffrey Nettle, a Victorian Court of Appeal judge, to the High Court to replace retiring justice Susan Crennan. Nettle is an excellent lawyer and his appointment was extremely well received.

High Court judges have the final word on the interpretation of all laws across Australia. They have the final say on the interpretation of the constitutional limits within which the federal and state governments must operate.

Understandably, then, the process and criteria by which these judges are selected are hotly contested. Australians will be best served by having exceptionally talented lawyers on the High Court. But should judges also be representative of the community that their rulings affect? What role should politics play in judicial appointments, if any?

The appointment process

The government has a pretty free hand in choosing High Court judges. To be eligible for a High Court appointment, a person must be – or have been – a judge of another court, or have been a legal practitioner for more than five years.

Before a High Court appointment, there is a statutory requirement for the federal attorney-general to consult their state counterparts. However, the federal attorney-general doesn’t have to act in accordance with any advice they may receive.

Nettle, the first of two High Court appointments the government will have to make in coming months, has been lauded for his exceptional legal mind, fairness and decency. After the fallout earlier this year over the Queensland government’s appointment of Tim Carmody as Chief Justice of the state’s Supreme Court, the federal government received high praise for avoiding a political appointment.

Despite these deserved plaudits, Nettle is another white, male judge from the eastern states who was revealed to the Australian public as the fait accompli of a secret system.

The politics of High Court appointments

Under the current arrangements, the infiltration of politics into the High Court appointment process seems inevitable. On one view, it is even desirable.

Federal Attorney-General George Brandis is required to consult his state and territory counterparts on High Court appointments. AAP/Lukas Coch

With very little accountability otherwise existing for judicial officeholders, the appointments process operates as an initial check on the courts. The government’s discretion over appointments injects democratic legitimacy into the judicial process.

In the US, Supreme Court judges are nominated by the executive and confirmed by the Senate, so both elected branches of government have input into the system.

In Australia, there has been surprisingly little recent concern over inappropriately “political” appointments, at least at the High Court level. Certainly, appointments of former politicians were common in the High Court’s first decades. However, the High Court has not had a politician-judge since 1975, when Gough Whitlam’s attorney-general, Lionel Murphy, was controversially appointed to the bench.

Today, it is usual for High Court judges to have had long and distinguished judicial careers before appointment, or occasionally to be appointed directly from practice.

Political influences have not been entirely removed from the process. Following the controversial native title decisions of Mabo v Queensland (No 2) and Wik Peoples v Queensland, former Nationals leader and deputy prime minister Tim Fischer remarked that increasing judicial activism demonstrated the need to appoint “capital-c” conservative judges to the bench.

Fischer believed that the judges were making decisions on the basis of political rather than legal considerations. If that’s correct, it’s understandable that a government may wish to appoint judges who share their politics. However, the introduction of overt political criteria into judicial selection has the capacity to undermine public confidence in the independence of the judiciary, causing enduring harm to the institution.

In the US, for example, the belief that the politics of individual Supreme Court judges influences their decisions – particularly in highly contested areas such as the right to abortion or the constitutionality of gun control – has turned Senate confirmation hearings into politically charged spectacles that do little for bolstering confidence in the integrity of the Supreme Court (or the Senate).

What does the ideal High Court judge look like?

In Australia, the lack of transparency is the most controversial aspect of judicial appointments. What criteria are applied? Who decides whether these criteria are met?

It is pretty uncontroversial that merit must be the overriding criterion for judicial appointment. It creates a threshold that maintains confidence in the legal abilities of Australia’s judicial officers. But selecting a single candidate from the top Australian judges and legal practitioners as the most meritorious is often impossible. They are all exceptional, so the merit principle needs to be supplemented.

As attorney-general, Nicola Roxon recognised a lack of diversity in judicial appointments. AAP/Alan Porritt

There is an ongoing debate in Australia as to whether diversity, or representativeness, should also play a role in judicial selection. In 2012, the then attorney-general, Nicola Roxon, publicly attacked the lack of judicial diversity in Australia. She argued that it had the potential to affect the community’s perception of the judiciary and their confidence in it.

It has also been suggested that a diverse judiciary may bring different perspectives to how justice may be achieved. For example, Justice Bertha Wilson, Canada’s first female Supreme Court judge, argued that men and women often conceive of legal problems differently. Men see problems as arising from competing rights, whereas women see problems as arising from competing obligations. Women therefore emphasise the importance of preserving relationships, not winning or losing.

Do judges decide cases through the objective interpretation and application of the law, divorced from their personal values and experience? Legal realists argue that not only do judges make judicial choices based on personal values and experience, but that these choices are inherent in the judicial task.

According to this view, the law often does not yield a single discernable answer, meaning that judges must make these choices. If such choices must be made, there is a strong argument that the personal characteristics of judges ought to reflect the diversity of the community they serve.

Reform in Australia a slow process

In 2008, following the lead of a number of states, then-attorney-general Robert McClelland introduced a more transparent, merits-based process for federal court appointments. The new system included a commitment to broader consultations, publishing selection criteria, advertising appointments and the creation of “advisory panels” to consider nominations and expressions of interest and develop a shortlist from which the attorney-general could make the final selection.

All appointments were to be “based on merit”. However, the government said it was also seeking to increase diversity in relation to gender, residential location, professional background and experience and cultural background.

This new process did not apply to the High Court. At this level, McClelland committed only to consulting with a wider pool than the statutorily mandated state attorneys-general. He indicated he would also consult with current High Court justices and the state and territory chief justices.

McClelland’s system represented a small step towards judicial appointments reform. But unlike similar reforms implemented in the UK, they were never formalised through legislation. On coming to office in 2013, the Abbott government abandoned them.

Current Attorney-General George Brandis, without any notice, has returned to the secretive, government-dominated model.

Even though the government has moved backwards on judicial appointments reform, excellent lawyers continue to be appointed to the High Court. Nobody would question that this is desirable, but is it enough?

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